BEFORE THE NATIONAL COMPANY LAW TRIBUNAL
NEW DELHI, BENCH – IV, NEW DELHI
I.A. NO. Interlocutory application number OF 2024
IN
C.P. (IB)-Main case number (C.P. (IB))/ND/2022
IN THE MATTER OF:
Financial creditor's name.…. FINANCIAL CREDITOR
VERSUS
Corporate debtor's name…. CORPORATE DEBTOR
AND IN THE MATTER OF:
Applicant's name…. APPLICANT
VERSUS
Respondents' names…. RESPONDENTS
INDEX
| S. NO. | PARTICULARS | PAGE NO. |
|---|
| 1. | Memo of Parties | |
| 4. | Application filed for and on behalf of the Applicant/unit owner under Section 60(5)(c) of the I&B Code, 2016 read with Rule 11 of the NCLT Rules, 2016, seeking directions to the Respondents, along with affidavit and stamp paper | |
| 5. | ANNEXURE A-1 (colly): Copy of the orders passed in I.A. Prior interlocutory application number/2024 dated 19.10.2023 and 20.11.2023 | |
| 6. | ANNEXURE A-2 (colly): Copy of the Agreement executed between the Corporate Debtor and the Applicant, along with the Letter of Possession issued by the Corporate Debtor | |
| 7. | ANNEXURE A-3 (colly): Copy of the consumption bills and payment receipts in respect of the said property of the Applicant | |
| 8. | ANNEXURE A-4 (colly): Copy of the emails sent by the Applicant to the IRP | |
| 9. | ANNEXURE A-5 (colly): Copy of the Arbitral Award dated 22.10.2016 along with the clarification award dated 19.01.2017 | |
| 10. | ANNEXURE A-6 (colly): Copy of the Reply filed by the Corporate Debtor in I.A. 2615/2024 | |
| 11. | ANNEXURE A-7 (colly): Copy of the Agreement dated 31.03.2007 executed between Respondent No. 1 and Respondent No. 2 | |
APPLICANT
THROUGH
Counsel's name, ADVOCATE
Counsel's address, New Delhi
Mobile: Counsel's mobile number
Email: Counsel's email address
BEFORE THE NATIONAL COMPANY LAW TRIBUNAL
NEW DELHI, BENCH – IV, NEW DELHI
I.A. NO. Interlocutory application number OF 2024
IN
C.P. (IB)-Main case number (C.P. (IB))/ND/2022
IN THE MATTER OF:
Financial creditor's name.…. FINANCIAL CREDITOR
VERSUS
Corporate debtor's name…. CORPORATE DEBTOR
AND IN THE MATTER OF:
Applicant's name…. APPLICANT
VERSUS
Respondents' names…. RESPONDENTS
MEMO OF PARTIES
1. SH. Applicant's name
S/o Sh. Applicant's father's name
R/o Applicant's address
(Applicant's designation)
VERSUS
1. Corporate debtor's name
(Through its Resolution Professional, Sh. Resolution professional's name)
Corporate debtor's address
Email: Corporate debtor's email address
2. Respondent no. 2's name
(Erstwhile known as Respondent no. 2's former name)
Respondent no. 2's address
Email: Respondent no. 2's email address
APPLICANT
THROUGH
Counsel's name, ADVOCATE
Counsel's address, New Delhi
Mobile: Counsel's mobile number
Email: Counsel's email address
BEFORE THE NATIONAL COMPANY LAW TRIBUNAL
NEW DELHI, BENCH – IV, NEW DELHI
I.A. NO. Interlocutory application number OF 2024
IN
C.P. (IB)-Main case number (C.P. (IB))/ND/2022
IN THE MATTER OF:
Financial creditor's name.…. FINANCIAL CREDITOR
VERSUS
Corporate debtor's name…. CORPORATE DEBTOR
AND IN THE MATTER OF:
Applicant's name…. APPLICANT
VERSUS
Respondent no. 1's name & ANR.…. RESPONDENTS
LETTER OF MENTION
Sir,
The enclosed interlocutory application in the aforesaid matter has been filed on behalf of the Applicant/unit owner under Section 60(5)(c) of the I&B Code, 2016 read with Rule 11 of the NCLT Rules, 2016, seeking directions to the Respondents.
It is most respectfully requested that the matter may kindly be listed at the earliest, as per the convenience of the Hon'ble Tribunal.
APPLICANT
THROUGH
Counsel's name, ADVOCATE
Counsel's address, New Delhi
Mobile: Counsel's mobile number
Email: Counsel's email address
BEFORE THE NATIONAL COMPANY LAW TRIBUNAL
NEW DELHI, BENCH – IV, NEW DELHI
I.A. NO. Interlocutory application number OF 2024
IN
C.P. (IB)-Main case number (C.P. (IB))/ND/2022
IN THE MATTER OF:
Financial creditor's name PVT. LTD..…. FINANCIAL CREDITOR
VERSUS
Corporate debtor's name…. CORPORATE DEBTOR
AND IN THE MATTER OF:
Applicant's name…. APPLICANT
VERSUS
Respondent no. 1's name & ANR.…. RESPONDENTS
NOTICE OF MOTION
To,
The Registrar,
National Company Law Tribunal,
New Delhi.
The party named above most respectfully requests the Tribunal to grant the following reliefs:
a.An order allowing the present application;
b.An order directing Respondent No. 1 to waive its right seeking registration of the unit/Basement-I, having an area of approximately Area of unit ( Basement-I), Unit location details, in its favour from Respondent No. 2;
c.An order directing the Applicant/unit owner to directly make payment of, or towards, the applicable registration charges, stamp duty and other applicable charges for the registration of the sale deed(s) of/for/pertaining to its unit/Basement-I having an area of approximately Area of unit ( Basement-I), Unit location details, with the concerned government authority/entity/party, and to seek and obtain an appointment with the concerned Sub-Registrar for the purpose of registration of the sale deed;
d.An order directing Respondent No. 2 to execute the sale deed(s) of/for/pertaining to the unit/Basement-I having an area of approximately Area of unit ( Basement-I), Unit location details, in favour of the Applicant herein, and further to remain present before the concerned Sub-Registrar for the purpose of registration of the same;
OR, IN THE ALTERNATIVE
An order appointing a Local Commissioner to directly execute the sale deed on behalf of Respondent No. 2 in respect of the unit/Basement-I having an area of approximately Area of unit ( Basement-I), Unit location details, in favour of the Applicant herein, and further to remain present before the concerned Sub-Registrar for the purpose of registration of the same; and
e.Such other and further orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case.
APPLICANT
THROUGH
Counsel's name
ADVOCATE
Counsel's address, New Delhi
Mobile: Counsel's mobile number
Email: Counsel's email address
BEFORE THE NATIONAL COMPANY LAW TRIBUNAL
NEW DELHI, BENCH – IV, NEW DELHI
I.A. NO. Interlocutory application number OF 2024
IN
C.P. (IB)-Main case number (C.P. (IB))/ND/2022
IN THE MATTER OF:
Financial creditor's name PVT. LTD..…. FINANCIAL CREDITOR
VERSUS
Corporate debtor's name…. CORPORATE DEBTOR
AND IN THE MATTER OF:
Applicant's name…. APPLICANT
VERSUS
Respondent no. 1's name & ANR.…. RESPONDENTS
APPLICATION FOR AND ON BEHALF OF THE APPLICANT UNDER SECTION 60(5)(C) OF THE I&B CODE, 2016 READ WITH RULE 11 OF THE NCLT RULES, 2016, SEEKING DIRECTIONS TO THE RESPONDENTS
MOST RESPECTFULLY SHOWETH:-
1.That the present application has been filed by the Applicant/unit owner under Section 60(5)(c) of the I&B Code, 2016 read with Rule 11 of the NCLT Rules, 2016, seeking appropriate directions from this Hon'ble Tribunal to the Respondents herein, in order to ensure justice and to seek a remedy for the difficulties being faced by the Applicant.
2.That the Applicant purchased Basement-I, having an area of approximately Area of unit ( Basement-I), Unit location details (hereinafter referred to as the "Unit" or "Basement-I"), from the Corporate Debtor. However, despite payment of the entire consideration amount (on or before the year 2009 itself) and despite being in possession of the said Unit (for a period of more than 12 years), the sale deed has neither been executed nor registered in favour of the Applicant. The present application has, therefore, been filed seeking directions to the Respondents.
3.That the Applicant had also made representations to the Corporate Debtor (including the learned Resolution Professional) in this regard; however, the same yielded no result, and the present application has accordingly been filed.
D. That the present application has been filed seeking appropriate directions from this Hon'ble Tribunal on the following grounds:
i.The Applicant has already paid the entire consideration amount to the Corporate Debtor, a fact duly admitted by the Corporate Debtor;
ii.The Applicant is already in possession of the said Unit, a fact duly admitted by the Corporate Debtor;
iii.The Corporate Debtor has admitted that the Applicant is the owner of the said Unit;
iv.Respondent No. 2 is under an obligation to execute and register the sale deed in favour of the Corporate Debtor, and thereafter the Corporate Debtor is to execute and register the sale deed in favour of the Applicant (this being the current arrangement between the parties, pursuant to which the said process has not been concluded till date);
v.As the Corporate Debtor is undergoing the CIRP and is already in a financial crunch, it would not be in a position to pay the applicable stamp duty and registration charges; hence, no purpose would be served if the Corporate Debtor were first required to pay the registration charges to have the said Unit registered in its favour, when the Unit has eventually to be registered and transferred in the name of the Applicant; and
vi.The Applicant being the end beneficiary, and considering the present financial position of the Corporate Debtor and to avoid any delay, additional rounds of litigation or hindrance, it would be beneficial for all parties if the Corporate Debtor is directed to waive its right to seek registration from Respondent No. 2, and Respondent No. 2 is directed to execute the sale deed for the Unit directly in favour of the Applicant, with the Applicant making payment of the stamp duty, registration charges etc. directly to the concerned authority/entity.
E. That owing to certain disputes and issues between the Corporate Debtor and Respondent No. 2 (including but not limited to disputes pertaining to conversion charges etc.), the sale deed could not be executed in favour of the Applicant. That Respondent No. 2 is under an obligation to execute the sale deed for the Unit in "Name of tower/project" (hereinafter referred to as the "*Tower"* and/or "*V4 Tower")* in favour of the Corporate Debtor, and thereafter the Corporate Debtor is to execute the sale deed for the said Unit in favour of the Applicant.
F. That it is pertinent to mention that the Corporate Debtor is now undergoing the CIRP and is already in a financial crunch. If the above-mentioned course were to be followed, the Corporate Debtor would have to incur the necessary expenses and pay stamp duty, registration charges etc. (amounting to the tune of lakhs) to first get the said Unit registered in its own name, and would thereafter have to execute the requisite sale deed in favour of the Applicant. This would result in the utilisation of substantial monetary resources of the Corporate Debtor, without any gain or advantage to it, since the said Unit has ultimately to be transferred and registered in the name of the Applicant.
G. That the registration charges and stamp duty etc. would have to be paid by the Corporate Debtor notwithstanding that, upon such registration in its favour, it would have to further execute the sale deed; hence no fruitful purpose would be achieved and monetary loss would be caused to the Corporate Debtor. That through the present application, the Applicant seeks permission from this Hon'ble Tribunal to direct Respondent No. 1 to waive its right to seek registration of the said Unit in its favour, and to further direct Respondent No. 2 to execute the sale deed directly in favour of the Applicant, in addition to directing the Applicant to pay the requisite registration charges, stamp duty etc. directly to the concerned government authority/entity. By such a direction, substantial monetary resources of the Corporate Debtor would be saved — which is one of the principal objectives of the CIRP — and the grievances of the Applicant would also stand resolved, as the said Unit would thereby be transferred and registered in the name of the Applicant.
H. That the present application has been filed before this Hon'ble Tribunal with the object of providing the requisite remedy and justice to the Applicant, as well as for preserving the assets of the Corporate Debtor.
I. That, by way of narrative, it is pertinent to mention:
1.That Respondent No. 2 (hereinafter also referred to as the "*Allottee")*, being a bidder at the auction held by the Delhi Development Authority on 16.08.2004, was declared the highest bidder, and the said bid was accepted vide letter dated 23.09.2004 bearing No. F89(3)/2004/CL/2310, with the right to sell being conferred upon the said Allottee. That, in pursuance of the Perpetual Lease Deed dated 17.01.2005, registered as Document No. 15611 in Additional Book No. I, Volume No. 1337 at pages 45 to 54 on 17.01.2005 in the office of the Sub-Registrar-VII, INA, the said Allottee was given possession of a commercial plot of land measuring 360 sq. mtrs. situated at Location of the commercial plot, together with the right to sell the same.
2.That the said Allottee obtained approval of the building plan for construction of a commercial complex named "V4 Tower" on the said plot of land, and, for the development of the said land, entered into a Development Agreement dated 24.02.2005 (hereinafter referred to as the "*Development Agreement")* with M/s Corporate debtor's name (hereinafter referred to as the "*Corporate Debtor")*.
3.That accordingly, the said "V4 Tower" was duly constructed and developed by the Corporate Debtor, and, upon such construction and development being duly completed, an Occupancy Certificate vide letter dated 31.05.2006 bearing No. Occupancy certificate letter number was issued in favour of the Allottee.
4.That the Corporate Debtor had purchased the entire basement at Location of the basement, measuring approximately 3875.040 sq. ft. super area and 2796 sq. ft. covered area (hereinafter the "Basement"), from Respondent No. 2 vide Space Buyer Agreement dated 31.03.2007. That subsequent to the said purchase, the Corporate Debtor divided the said Basement into two portions — the Unit herein, having a super area of 1937.50 sq. ft. (known as Basement-I), and Basement-II, having a super area of approximately 1400 sq. ft.
5.That representing itself to be the complete owner of the said Basement, the Corporate Debtor sold the Unit (being Basement-I) to the Applicant vide Agreement to Sell dated 25.08.2009 (hereinafter the "ATS") for a consideration of Rs. 35,00,000/- (the said amount having been paid vide cheques dated 21.07.2009, a fact admitted by the Corporate Debtor). That the said ATS was executed by the Corporate Debtor with the Applicant only after receipt of the entire consideration amount, and the Corporate Debtor also issued a possession letter dated 25.08.2009 to the Applicant, confirming its possession.
6.That since 25.08.2009, the Applicant has been in continuous, uninterrupted and exclusive possession of the said Unit, without any hindrance from any person. That, as the entire building Name of the building/tower was a leasehold property, the sale deed was not executed in favour of the Applicant, and only the said ATS was executed.
7.That when the said Tower was subsequently converted into a freehold property, the Applicant made repeated requests to the Corporate Debtor seeking registration of the sale deed (and was repeatedly assured that the same would be done shortly, however, to no avail). That, over time, several other unit owners (in the said Tower) filed appropriate cases before the Hon'ble Karkardooma Court against the Corporate Debtor and Respondent No. 2 seeking registration of their sale deeds; however, the matters were never adjudicated or concluded.
8.That it is pertinent to mention that, owing to certain ongoing disputes between the Respondent no. 2 and the Corporate Debtor, the sale deeds were never executed in favour of the respective parties. The arrangement contemplated that the sale deeds would first be executed by the Respondent no. 2 in favour of the Corporate Debtor, and thereafter the Corporate Debtor was required to execute the sale deeds in favour of the respective owners (including the Applicant herein).
9.That amongst the several disputes between the Respondent no. 2 and the Corporate Debtor, one of the said disputes related to the said complete Basement, as the Respondent no. 2 had arbitrarily cancelled/terminated the Space Buyer Agreement dated 31.03.2007 (being the agreement vide which the said Respondent no. 2 had sold the complete Basement to the Corporate Debtor). Accordingly, the Corporate Debtor initiated arbitration proceedings in respect of the said alleged termination (along with other reliefs/claims).
10.That vide an award dated 20.10.2016 (hereinafter the "Award"), the Ld. Arbitrator adjudicated (amongst other reliefs/directions) that:
a.The termination by the Respondent no. 2 of the Space Buyer Agreement dated 31.03.2007 was illegal and void;
b.The Respondent no. 2 was directed to execute a sale deed of the basement in favour of the Corporate Debtor upon the Corporate Debtor paying to the Respondent no. 2, at the time of registration of the sale deed, Rs. Conversion charges amount (₹) as charges for conversion of leasehold to freehold. The Corporate Debtor was to prepare all necessary papers for the execution of the sale deed and incur all expenses in that regard. Thereafter, if the Respondent no. 2 failed to execute the sale deed, the Registrar of the Delhi High Court or his nominee was to execute the sale deed and get it registered on behalf of the Corporate Debtor, and the said Registrar would be paid Rs. 5,000/- by the Respondent no. 2 as his fee.
•…
11.That it is pertinent to mention that the said Award was never challenged by the said Respondent no. 2, nor was any clarification of any manner whatsoever sought in respect thereof. Hence, the said Award attained finality. As per the said Award, it was categorically held that neither had the Space Buyer Agreement dated 31.03.2007 (vide which the Corporate Debtor became the owner of the said Basement) been violated by the Corporate Debtor (the sale in the year 2007 to the Corporate Debtor therefore remaining subsisting and valid), nor was the said Basement the property of the Respondent no. 2. Hence, the only condition imposed upon the Corporate Debtor for the execution of the sale deed was the payment of the conversion charges.
12.That the said relief was neither a time-bound relief nor a conditional relief. Therefore, in no manner whatsoever could it have been interpreted or understood that, upon the failure of the Corporate Debtor to make payment of the said conversion charges, the said right to seek execution of the sale deed would be lost, or that the said Basement would become the property of the Respondent no. 2.
13.That with the passage of time, the said Corporate Debtor was declared insolvent by the Hon'ble NCLT. Accordingly, the said unit owners (who had filed cases against the Respondent no. 2 and the Corporate Debtor seeking registration of the sale deed before the Hon'ble Karkardooma Court) filed an application bearing no. I.A. 2615 of 2023 (hereinafter the "NCLT Application") before the Hon'ble NCLT seeking the relief of registration of the sale deeds. In the said NCLT Application, notice has already been issued by this Hon'ble Tribunal to the Corporate Debtor and the Respondent no. 2. Furthermore, the Corporate Debtor (through the Ld. RP) has filed its reply, wherein it has already agreed to the said proposition of waiving off its right to seek registration of the other units in its favour, and has agreed to have the same directly registered in favour of the respective unit owners.
14.That the simple understanding is that "as and when the said payment is made, the said Respondent no. 2 will execute the sale deed". If this is not done, then (taking the best-case scenario from the perspective of the Respondent no. 2 and without prejudice to the rights of the Applicant), the said Respondent no. 2 would be entitled to seek interest etc. upon the due conversion charges as and when the sale deed in respect of the said Basement is executed by the Respondent no. 2 in favour of the Corporate Debtor. However, given that the Corporate Debtor is now in insolvency proceedings, the said Respondent no. 2 can only file its claim before the Ld. RP (if not already filed) seeking payment of the said due amount (as granted vide the Award), and is obligated to have the registration done in favour of the Applicant herein (with the Corporate Debtor waiving off its right to seek registration in its favour first).
J. That it is pertinent to mention that the Corporate Debtor is now undergoing the CIRP and is already in a financially strained position. If the above-mentioned scenario is to be complied with, the Corporate Debtor would have to incur the necessary expenses and pay the stamp duty etc. for the purpose of first having the said Unit registered in its own name, and thereafter it would have to execute the required sale deeds in favour of the Applicant. In this manner, huge monetary resources of the Corporate Debtor would be utilised, without any gain or advantage to the Corporate Debtor.
K. That in view of the above-mentioned facts and circumstances, and further relying upon Section 53A of the Transfer of Property Act read with the judgment of the Hon'ble Supreme Court in the matter titled Suraj Lamps & Industries vs. the State of Haryana dated 11.10.2011, the transfer, as well as the sale, had duly taken place, and the only obligation upon the Corporate Debtor was to execute and register a sale deed to that effect in favour of the said Applicant (being a bonafide purchaser). Neither can the said Basement be termed to be the property of the Judgment Debtor nor of any third party. Hence, the present application seeks appropriate directions to that effect.
L. That no other or similar application has been filed by the Applicant herein, nor is any such application pending before this Tribunal under Section 60(5)(c) of the I&B Code, 2016 in respect of the said Unit. However, other unit owners have already filed an application bearing no. I.A. 2615 of 2023 before the Hon'ble NCLT seeking the relief of registration of the sale deeds. In the said NCLT Application, notice has already been issued by this Hon'ble Tribunal to the Corporate Debtor and the Respondent no. 2. Furthermore, the Corporate Debtor (through the Ld. RP) has filed its reply, wherein it has already agreed to the said proposition of waiving off its right to seek registration of the other units in its favour, and has agreed to have the same directly registered in favour of the respective unit owners.
M. That the present application is bonafide in nature and is made in the interest of justice. Further, the Applicant has paid the requisite fees towards the filing of the present application and undertakes to pay any additional fees, if so required and directed. No prejudice shall be caused to any party if the present application is allowed.
PRAYER
In the facts and circumstances mentioned above, the Applicant herein most respectfully prays that this Hon'ble Tribunal may be pleased to pass:
a.An order allowing the present application;
b.An order directing the Respondent no. 1 to waive off its right seeking registration of the unit/Basement-I, having an area of around Area of unit ( Basement-I), Unit location details, in its favour from the Respondent no. 2;
c.An order directing the Applicant/unit owner to directly make payment of the applicable registration charges, stamp duty and other applicable charges towards the registration of the sale deed of/for the unit/Basement-I having an area of around Area of unit ( Basement-I), Unit location details, to the concerned government authority/entity/party, and to seek and obtain an appointment with the concerned Sub-Registrar for the purpose of registration of the sale deed.
d.An order directing Respondent No. 2 to execute the sale deed(s) of/for/pertaining to the unit/Basement-I having an area of approximately Area of unit ( Basement-I), Unit location details, in favour of the Applicant, and to remain present before the concerned Sub-Registrar for the purpose of registration of the same;
OR, IN THE ALTERNATIVE
An order appointing a Local Commissioner to execute the sale deed(s) directly, on behalf of Respondent No. 2, of/for/pertaining to the unit/Basement-I having an area of approximately Area of unit ( Basement-I), Unit location details, in favour of the Applicant, and to remain present before the concerned Sub-Registrar for the purpose of registration of the same;
and
e.Such other and further orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the present case.
APPLICANT
THROUGH
Counsel's name
ADVOCATES
Counsel's address, New Delhi
Mobile: Counsel's mobile number
Email: Counsel's email ID
BEFORE THE NATIONAL COMPANY LAW TRIBUNAL
NEW DELHI, BENCH – IV, NEW DELHI
I.A. NO. Interlocutory application number OF Year of the interlocutory application
IN
C.P. (IB)-Main case number (C.P. (IB))/ND/2022
IN THE MATTER OF:
Financial creditor's name PVT. LTD.….FINANCIAL CREDITOR
VERSUS
Corporate debtor's name….CORPORATE DEBTOR
AND IN THE MATTER OF:
Applicant's name….APPLICANT
VERSUS
**Respondent no. 1's name & ANR.….RESPONDENTS**
AFFIDAVIT OF SH. Deponent's (applicant's) name, S/O SH. Deponent's father's name, R/O Deponent's address, WHO DOES HEREBY SOLEMNLY AFFIRM AND DECLARE AS UNDER:
1.That I, the Deponent, am the Applicant in the above-mentioned application, and as such I am competent and well conversant with the facts of the present case.
2.That the accompanying application has been prepared by my Advocate under my instructions and is based upon the information and documents provided by me. I state that the contents of paragraphs A to L of the said application are true and correct to the best of my knowledge and belief.
DEPONENT
VERIFICATION
Verified at Place of verification on this Date of verification that the contents of the above affidavit are true and correct to the best of my knowledge and belief, and that nothing material has been concealed therefrom.
DEPONENT